UNION OF INDIA Vs. SANGRAM KESHARI NAYAK

JUDGEMENT

(1.) THE Union of India represented by the General Manager, South Eastern Railways, and its officers have filed this Writ Petition under Articles 226 and 227 of the Constitution of India with a prayer to quash the Order dated 19.8.2003 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack, (hereinafter called'the Tribunal 1), vide Annexure -3, allowing Transfer Application No. 1/2002 filed by Opp. Party No. 1 -Sangram Keshari Nayak (hereinafter described as 'the applicant').

(2.) THE applicant, who belongs to the Indian Railways Traffic Service (IRTS), filed an application under Section 10 of the Administrative Tribunals Act, 1985 before the Central Administrative Tribunal, Calcutta Bench, which was registered as O.A. No. 1306/1999. Subsequently the said O.A. was transferred to the Cuttack Bench of the Tribunal and was registered as Transfer Application No. 1/2002. The applicant while serving as the Deputy Chief Operations Manager (Coaching) under the South Eastern Railways at Calcutta, filed the aforesaid Original Application assailing the decision of the Railway Authorities in putting the recommendations of the Departmental Promotion Committee ('D.P.C.') for his promotion to the post of Senior Administrative Grade ('S.A.G.') in a sealed cover although no charge -sheet/charge memo, had been issued to him at that point of time, and praying for a direction to the Railway Authorities to give him promotion to the S.A.G. keeping in view the recommendations made by the D.P.C. in its meeting held on 14.1.1999 and to effect his promotion from the date, his juniors were promoted to the post of S.A.G.

(3.) AFTER disposal of the aforesaid case, the applicant filed a contempt petition before the Tribunal, which was registered as Contempt Petition No. 100/2003, for non -implementation of the Order passed by the Tribunal. Thereafter the petitioners filed the present Writ Petition in which this Court by its Order dated 19.1.2004 directed stay of the impugned Order passed by the Tribunal in Annexure -3 for a period of ten weeks and the said Order of stay has been extended from time to time. Shri B. Pal, Learned Senior Counsel appearing for the petitioners, i.e. the Railway Authorities, submitted that there was no irregularity committed by the Railway Authorities in keeping the decision of the, DPC in deemed sealed cover in terms of the Guidelines/Instructions contained in the letter of the Railway Ministry (Railway Board) dated 21.1.1993. Learned Counsel in support of his submission relied upon a decision of the Apex Court reported in Union of India v. R.S. Sharma, AIR 2000 SC 2337, and submitted that the candidates against whom investigation of corruption etc. was in progress would be liable to be covered under 'sealed cover procedure', the candidate against whom investigation was pending for financial misdemeanors when DPC considered his case for promotion, was liable to be covered by the sealed cover procedure. The aforesaid judgment is based upon the circular which was issued by the Union of India and was applicable to the respondent, who was a Divisional Engineer of the Telecom Department. In the present case the circular letter was issued by the Ministry of Railways (Railway Board) and was different from that of the circular referred to in R. S. Sharma's case (supra). The ratio decided in R. S. Sharma's case is not applicable to the facts of the present case. Apart from referring to some other judgments of the Apex Court, the Learned Counsel for the petitioners relied upon an unreported judgment of the Bombay High Court rendered on 23.11.2000 in Writ Petition No. 3971 of 2000 (R.P. Mittal v. Union of India), photo -copy of which was produced before us. The Bombay High Court in the aforesaid case upheld similar action taken by the Railway Authorities. 6. Let us first see the relevant portions of the Guidelines/Instructions issued by the Railway Ministry in its letter dated 21.1.1993. Paragraph 6 of the said Guidelines/Instructions reads as follows :